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ELCStruck OutNotice of Motion dated June 28, 2022 (suit re LR Mwimbi/Murugi/1788)

Anestly Muthoni Mukobwa v [Defendant/Respondent]

Environment and Land Court
1 February 2023
2,650 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner's eviction application was struck out because she filed it in person without court leave after previously using a lawyer.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Chuka (C.K. Yano, J) determined a Notice of Motion dated June 28, 2022 by the plaintiff, Anestly Muthoni Mukobwa, seeking an eviction order against the defendant from LR Mwimbi/Murugi/1788 pursuant to a judgment delivered on June 20, 2018 and a decree issued on September 4, 2018. The respondent opposed through grounds of objection, arguing that the application was fatally defective because it was filed by the applicant in person while the firm of Ayub K Anampiu & Co Advocates remained on record without leave or consent as required by Order 9 Rule 9 of the Civil Procedure Rules, and that a pending appeal, Nyeri Civil Appeal No 187 of 2018, awaited judgment. The applicant relied on Article 159 of the Constitution, pleading ignorance of procedure and lack of funds to retain counsel. The court framed four issues but resolved only the first: it held that Order 9 Rule 9 mandatorily requires either a formal application with notice to all parties or a filed consent before a previously represented party may act in person after judgment. The applicant having complied with neither, the court found the application incurably defective, held that Article 159 and ignorance of the law were no shield, and declined to consider whether the appeal operates as a stay or whether eviction orders should issue. The motion was struck out with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application is defective by virtue of Order 9 Rule 9 (a) of the Civil Procedure Rules
  2. 2.Whether an appeal can operate as stay
  3. 3.Whether the applicant is entitled to eviction orders
  4. 4.Who pays the costs of the application

Key legal issues

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01

Whether the application was fatally defective for breach of Order 9 Rule 9

Holding

The application was incurably defective because the plaintiff filed it in person while the firm of Ayub K Anampiu & Co Advocates remained on record, without leave of court or a consent

Reasoning

Order 9 Rule 9 governs both change of advocate and a party electing to act in person after judgment. Compliance is mandatory and requires either a formal application with notice to all parties or a filed consent. Judgment had been entered on June 20, 2018 and a decree issued, so the plaintiff, being previously represented, needed leave or consent before filing the motion in person. Article 159 could not cure the default since ignorance of the law is no defence.

p. 5
02

Whether Article 159 (substantive justice over technicalities) excused the procedural default

Holding

No - the applicant could not shield herself behind Article 159 or ignorance of the law

Reasoning

Having found the correct procedure was not followed, the court held the applicant could not rely on Article 159 or claim ignorance as a defence. The mandatory nature of Order 9 Rule 9 prevailed, consistent with the authority in Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi on deliberate non-compliance with rules of procedure.

p. 5
03

Whether an appeal operates as a stay and whether eviction orders should issue

Holding

Not determined; once the application was found defective, the court declined to consider the remaining issues

Reasoning

The court found the application incurably defective and expressly stated that it need not consider the other issues, including whether the pending appeal (Nyeri Civil Appeal No 187 of 2018) operates as a stay and whether the applicant was entitled to eviction orders. These issues remain open should a properly constituted application be filed.

p. 6

Legal principles established

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  • A party who wishes to act in person after judgment, having previously been represented by an advocate on record, must obtain leave of the court or file a consent under Order 9 Rule 9 before filing any application; non-compliance renders the application defective

Court orders

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  1. 1.Notice of motion dated June 28, 2022 struck out with costs to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 3A, 63(4) Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

Relief refused

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Eviction order against the respondent from LR Mwimbi/Murugi/1788

Application struck out as incurably defective, having been filed in person without leave of court contrary to the mandatory provisions of Order 9 Rule 9

p. 6

Costs of the application

Costs awarded to the Respondent, not the applicant

p. 6

Costs

Costs of the application to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find that the application dated June 28, 2022 is incurably defective and bad in law having been filed by a party who is not properly on record and without leave of court contrary to the mandatory provisions of Order 9 Rule 9
p. 6Defect of application for breach of Order 9 Rule 9
the applicant cannot shield herself with Article 159 or the ground of ignorance of the law since ignorance of the law is no defence
p. 5Article 159 does not excuse non-compliance with mandatory procedure
notice of motion dated June 28, 2022 is hereby struck out with costs to the Respondent
p. 6Final orders
Having found that the application is defective, I need not consider the other issues
p. 6Scope of determination

Issues in the judgment

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minor

The court's own list of issues includes whether the application is defective under Order 9 Rule 9(a), framed as raised by the respondent, but the ruling does not state the names of the parties in the case caption; the defendant's name is not given in the extracted text

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Anestly Muthoni Mukobwa v [Defendant/Respondent]", Case Analysis (2023). Notice of Motion dated June 28, 2022 (suit re LR Mwimbi/Murugi/1788). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/447/eng@2023-02-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.